High court's Calif. pot ruling also outlaws homemade machine guns

modbee ^ | 7/1/6 | paul elias

[LouAvul]

SAN FRANCISCO (AP) - A recent Supreme Court ruling that Congress can ban homegrown marijuana for medical use in California led Friday to the reinstatement of an Arizona man's overturned conviction for having homemade machine guns.

Prosecutors in both cases invoked the Constitution's interstate commerce clause, despite the fact that the cases centered on items that were homemade, or homegrown, and didn't involve commerce or crossing state lines. The courts ruled, however, that the items still can affect interstate commerce and therefore can be regulated by federal law.

In the machine gun case, the 9th Circuit Court of Appeals on Friday reinstated the convictions of Robert Wilson Stewart, 67, of Mesa, Ariz. The three-judge panel reversed its own previous decision to overturn the convictions because he never tried to sell his weapons or transport them over state lines.

Federal agents raided Stewart's house in June 2000 and found five machine guns, which Stewart argued did not violate the congressionally mandated ban on certain assault weapons because they were homemade and not for sale. The appellate court initially agreed with Stewart and overturned his convictions in 2003, ruling the interstate commerce clause did not apply.

The three-judge panel, however, was ordered by the Supreme Court to reconsider its decision after the justices ruled in 2005 that the federal government could prosecute medical marijuana users and their suppliers even if their activity was confined to California.

In the marijuana case, brought by Oakland resident Angel Raich, the majority of Supreme Court justices ruled that the interstate commerce clause makes California's medical marijuana law illegal. The court said homegrown marijuana confined to the state still can affect the entire national market for the drug, allowing for federal regulation.

The same rationale was applied by the appeals court in the homemade machine gun case.

[tacticalogic]

In the Stewart case, you can play these wink-wink, nudge-nudge games from here to Sunday --

The "wink-wink, nudge-nudge" game is being played by the people who are telling us that there is an objective of regulating commerce here.

[tacticalogic]

So, it comes down to "Should Congress be regulating machine guns or shouldn't they"? You can't honestly say "yes" and then allow every Tom, Dick, and Bob Stewart to build them in their basements.

Bullshit. You'd have us believe that if Congress can't play games with the Commerce Clause, then they will be unable to do anything and we will be powerless to change it. You'd also have us believe that Congress cannot pass a single regulation about anything and effectively enforce it without having absolute control over every aspect of the object of that regulation and everyone involved with it.

[tacticalogic]

This was an actual kit purchased from Stewart and assembled by an expert. Why would it be "fatal" to fire a live round? Are you saying all these kits were flawed?

The kits are fine. What's fatal is doing sloppy machine work with inappropriate tooling in order to make a case on specific critera (can be made to fire in a short time with simple hand tools) without any regard for whether it will be safe, accurate or reliable when you're finished. There's nothing in the regs about that is there? All they care about is will it set off a round, right? They took one of his kits, machined and assembled it with a wanton and intentional disregard for the instructions that came with it, and then held him responsible for the outcome.

[robertpaulsen]

"I think that's why you hate him."

What have I said to make you think that?

He obviously doesn't have a high opinion of his fellow man when he thinks that he can get away with selling "a hunk of metal" (for $1600.), no license, no serial number, that, with a little machining, can be assembled into a .50 cal. BMG rifle. He must think we're all stupid, especially the authorities.

Hell, he should have been arrested just for the effrontery.

[robertpaulsen]

So you want Congress to regulate machine guns, but you also want to allow anyone and everyone, including ex-felons, to be able to build as many as they want.

Then, once we have a half-million or so unlicensed, unregistered homemade machine guns with no serial number floating around the states, if they cross state lines, then we'll prosecute them to the fullest extent of the law. Right?

Question. How will you know that an unregistered machine gun with no serial number actually crossed a state line?

"Tee-hee, tee-hee, robertpaulsen -- we wouldn't! Oh my. Now how did that happen?"

You know what I do hate? With a passion? Posters who take me for a fool. Do you take me for a fool, tacticalogic?

[robertpaulsen]

First of all, Stewart himself advertised the .50 cal. BMG rifle kits to be easily converted, almost the same wording as the law.

Second, you're admitting that he was selling unlicensed, unregistered, functional (with machining) rifle kits with no serial number. You think he should be allowed to get away with this blatant violation of the law on a technicality?

You realize that all you're doing is inviting the lawmakers to broaden the law and make it so general that everyone is prosecutable. And then you'll cry, cry, cry, that it's the GOVERNMENT'S fault that we have all these laws.

Fine. Have it your way. Let Stewart free for all I care. Just don't be surprised to then see the statute changed from "easily convertible" to "convertible". And, I'll support that change.

Wink-wink, nudge-nudge THAT.

[tacticalogic]

He obviously doesn't have a high opinion of his fellow man when he thinks that he can get away with selling "a hunk of metal" (for $1600.), no license, no serial number, that, with a little machining, can be assembled into a .50 cal. BMG rifle. He must think we're all stupid, especially the authorities.

I didn't realize you were such a fine judge of precsion machine work and gunsmithing. I don't remember reading about anyone who bought one of his kits that was disappointed with the quality or workmanship. Have you ever turned a tap in you life?

[tacticalogic]

Fine. Have it your way. Let Stewart free for all I care. Just don't be surprised to then see the statute changed from "easily convertible" to "convertible". And, I'll support that change.

You will anyway, regardless of what happens to Stewart.

Wink-wink, nudge-nudge THAT.

Won't be any winking and nudging for that. For that you keep both eyes open, and squeeze.

[tacticalogic]

So you want Congress to regulate machine guns, but you also want to allow anyone and everyone, including ex-felons, to be able to build as many as they want.

Now where did I say that? You figure you might win one if you get to argue both sides?

Then, once we have a half-million or so unlicensed, unregistered homemade machine guns with no serial number floating around the states, if they cross state lines, then we'll prosecute them to the fullest extent of the law. Right?

How about prosecuting them to the fullest extend of the law if they get used for a criminal act?

Question. How will you know that an unregistered machine gun with no serial number actually crossed a state line?

You won't. If you find one still in the state it was manufactured in you still wouldn't know. The only way you can know for sure is to monitor every single item you're trying to regulate from the time it's manufactured until it is destroyed.

"Tee-hee, tee-hee, robertpaulsen -- we wouldn't! Oh my. Now how did that happen?"

You know what I do hate? With a passion? Posters who take me for a fool. Do you take me for a fool, tacticalogic?

I take you for a current or former bureaucrat who's used to being able to tell other people how they must do things that you don't have a clue how to do yourself.

[raygun]

Roger, that.

I can't afford FOBA or ANY sort of ANY sort of that.

I'm just going to have to deal with mushing a 688-I forward as fast as its fanney CAN be mushed.

[publiusF27]

The 1990 Lopez case said the Gun-Free Schools Act was unconstitutional. The 922(q) statute you listed is the new 1996 language. That has not yet been challenged, and may pass U.S. Supreme Court muster. What's your point here?

Well, back at post 96, in response to a quotation from Thomas' Morrison concurrence, you said this:

That's where he complains that Congress is out of control, that Congress has no limits and that Congress is usurping state police powers.

That little diatribe was in a court decision that bitch-slapped Congress and said VAWA was unconstitutional, right on the heels of another court decision bitch-slapping Congress saying that their Gun-Free Schools Act was unconstitutional.

So much for "runaway Congressional power", huh?

It sounded like the Courts were keeping Congress in check, until I pointed out that after the 1995 Lopez decision, Congress turned around in 1996 and rewrote the same law with new Commerce Clause language.

You acknowledged that point in post 310, where you said this about the 1996 law:

Until it's challenged. Like any other law. And there are those who say the law, even with the new language, will not survive if challenged.

I pointed out that if the new law is challenged in a post-Raich world, it will most likely pass, because the new law contains "some implication by legislative design that regulating intrastate activity is essential" to their interstate gun regulation.

You also switched tracks a bit, moving away from your position that the Courts "bitch slapped" Congress over guns near schools when you said this:

People look to the court to address the issue and what happens? Congress rewrites the law. And they'll rewrite it again if if fails the second time. Obviously, this is not working.

As I said, get out the vote and throw out the lawmakers that are writing this overreaching legislation. If you don't have the votes, then shut up -- maybe that means the citizens actually want this legislation.

While I agree that being in the majority is one way to get your rights respected, I also believe that in a Republic, the rights of the minority must be protected against the tyranny of the majority, and we do that by maintaining the rule of law. The political branches are, of course, going to go after the majority will in most cases, even at the expense of the rights of some citizens, and if they break the terms of our contract (the Constitution) in so doing, the Courts should nullify their actions. If they have a big enough majority, they can always amend the Constitution.

At post 96, you're pointing to the Court "bitch slapping" Congress to deflate Justice Thomas' quotation about runaway Congressional power. At post 310, things are going one way, and you say the 1996 law may not pass a Court test. By 355, they're going another way, and you say it may pass. You start out saying the Court bitch slapped Congress, then move to saying that Congress will (should?) always overrule the Court if a majority wants it, so this "bitch slapping" is obviously not working. And now you ask what is MY point about Lopez? Like I said, you're still a funny guy!

[publiusF27]

Be careful with the language. Note that it does NOT say, "All males physically capable of acting in concert for the common defense comprise the Militia." Big difference.

OK, please explain the difference.

Secondly, the Militia has been redefined over the years by Acts of Congress -- the Militia Act of 1792, the Militia Act of 1862 (actually an amendment to the Militia Act of 1792), the Militia Act of 1903 -- the latter establishing the National Guard.

Sounds to me like the colonists allowing King George to determine who may be in the militia. I'm guessing a King-approved militia would not have engaged in revolution.

The second amendment, therefore, must be read as to its intent -- the federal government shall not infringe the ability of the states to arm themselves for their protection and the protection of the nation.

The States were absolutely NOT to maintain any standing army, and the intent of the 2nd was to preserve the ability of the PEOPLE to arm themselves.

"The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government." - -- Thomas Jefferson

"That the said Constitution shall never be construed to authorize Congress to infringe the just liberty of the press or the rights of conscience; or to prevent the people of the United States who are peaceable citizens from keeping their own arms..." -Samuel Adams, Debates and Proceedings in the Convention of the Commonwealth of Massachusetts, at 86-87 (Peirce & Hale, eds., Boston, 1850.

"Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole of the people are armed, and constitute a force superior to any bands of regular troops that can be, on any pretense, raised in the United States." -Noah Webster

"A free people ought not only to be armed and disciplined, but they should have sufficient arms and ammunition to maintain a status of independence from any who might attempt to abuse them, which would include their own government." -- George Washington

etc, etc

[robertpaulsen]

If you want to change the law, do so through Congress not the courts. That's my point.

[robertpaulsen]

"OK, please explain the difference."

'The NBA is comprised of basketball players over 6 feet tall' is not the same as 'basketball players over 6 feet tall comprise the NBA'. The latter says if you're over 6 feet, you're in the NBA.

[publiusF27]

And if Congress passes an unconstitutional law, the courts should do what? Nothing?

The Court said the Gun Free Schools Act was unconstitutional, so Congress added some magic words and re-passed the same law the next year, and we should turn to Congress to change that situation? The Court says having a school near a gun isn't related to interstate commerce, and the Congress simply added language to the law saying it IS related to interstate commerce. I see that as a blatant bitch-slapping by the Congress, and as unconstitutional usurpation of power, and I'd like to see the Court put Congress in their place on that one.

Of course, that can't happen in a post-Raich world, since Raich has ratified the status of the Lopez decision as a mere drafting guide for Congress.

[publiusF27]

There are other quotations in the Miller decision, such as:

The General Assembly of Virginia, October, 1785, (12 Hening's Statutes) declared,

"The defense and safety of the commonwealth depend upon having its citizens properly armed and taught the knowledge of military duty."

It further provided for organization and control of the Militia, and directed that "All free male persons between the ages of eighteen and fifty years," with certain exceptions, "shall be inrolled or formed into companies."

and...

By an Act passed April 4, 1786, the New York Legislature directed: That every able-bodied Male Person, being [p181] a Citizen of this State, or of any of the United States, and residing in this State, (except such Persons as are hereinafter excepted) and who are of the Age of Sixteen, and under the Age of Forty-five Years, shall, by the Captain or commanding Officer of the Beat in which such Citizens shall reside, within four Months after the passing of this Act, be enrolled in the Company of such Beat.

and...

The General Court of Massachusetts, January Session 1784, provided for the organization and government of the Militia. It directed that the Train Band should "contain all able bodied men, from sixteen to forty years of age, and the Alarm List, all other men under sixty years of age, . . ."

and...

In all the colonies, as in England, the militia system was based on the principle of the assize of arms. This implied the general obligation of all adult male inhabitants to possess arms, and, with certain exceptions, to [p180] cooperate in the work of defence.

You might also take note of the definition of comprise, as well as the usage note, found here:

1. To consist of; be composed of: “The French got... French Equatorial Africa, comprising several territories” (Alex Shoumatoff).
2. To include; contain: “The word ‘politics’... comprises, in itself, a difficult study of no inconsiderable magnitude” (Charles Dickens). See Synonyms at include.
3. Usage Problem. To compose; constitute: “Put together the slaughterhouses, the steel mills, the freight yards... that comprised the city” (Saul Bellow).

Usage Note: The traditional rule states that the whole comprises the parts and the parts compose the whole. In strict usage: The Union comprises 50 states. Fifty states compose (or constitute or make up) the Union....

Getting back to the quotation to which you objected, "the Militia comprised all males physically capable of acting in concert for the common defense." It seems to me, in light of the other quotations listed here, the definition of comprise, and the usage note, that the sentence says the militia consists of, or is composed of, all males physically capable of acting in concert for the common defense.

[robertpaulsen]

"It seems to me, in light of the other quotations listed here, the definition of comprise, and the usage note, that the sentence says the militia consists of, or is composed of, all males physically capable of acting in concert for the common defense."

Yes, that's what it says. It says if you look at the Militia, the Militia is composed of all males physically capable of acting in concert for the common defense."

It doesn't say that every U.S. citizen is part of a Militia and, therefore, allowed to carry a machine gun around. It says that's the "pool" from which the Militia is formed.

Now, once those citizens who meet the criteria are enrolled, then they are actually part of a state's Militia. Do you know of anyone so enrolled who would meet the criteria? Those are the only individuals who would have "standing" with the U.S. Supreme Court and be allowed to bring a second amendment case.

[robertpaulsen]

"Of course, that can't happen in a post-Raich world,"

It may. Again, we're working with the definition of "substantial" and a couple of other commerce issues according to the articles I read.

But this power struggle merely points out that the work needs to be done with Congress, not the courts -- checks and balances only go so far.

I am not as comfortable as you in turning all final decisions over to the U.S. Supreme Court.

[robertpaulsen]

"Now where did I say that?"

You didn't. I had to assume that from your response since you didn't directly answer my question. Should Congress be regulating machine guns or shouldn't they?

[tacticalogic]

You didn't. I had to assume that from your response since you didn't directly answer my question. Should Congress be regulating machine guns or shouldn't they?

Not until they're authorized to do so. I'll reserve judgement until the debate on why they need to be regulated at the national level to decide whether I support authorizing it, and to what extent.